Assembly Bill 2188 (AB 2188) amends the California Fair Employment and Housing Act (FEHA) to prohibit an employer from discriminating against a current employee or applicant for the use of cannabis off the job and away from work. The bill will become effective beginning January 1, 2024.

AB 2188 is not intended to permit employees to possess or use marijuana on the job, nor will it affect the rights of employers to maintain a drug and alcohol free workplace. Rather, the focus of AB 2188 is on tetrahydrocannabinol (THC) and the level of impairment of the individual while at work. THC is the chemical compound in cannabis that causes impairment of the user and may cause them to experience psychoactive effects. After THC is metabolized, it is stored in the body as non-psychoactive cannabis metabolites; the presence of which does not indicate that the employee is actively impaired.

Agencies testing for marijuana use will now be required to use either a drug test for THC that does not rely on the presence of non-psychoactive cannabis metabolites (such as saliva based oral fluid tests); or an impairment test that measures a person’s impairment level against their own baseline performance.

This law will not apply to employees that serve in Department of Transportation (DOT) safety sensitive regulated positions, such as drivers of commercial vehicles or employees in the construction trade (such as some public works and maintenance & operations classifications). Agencies who are required under federal or state regulations to test their employees for marijuana may continue to use the same testing procedures.

Following AB 2188, the California Legislature passed Senate Bill 700 (SB 700) which will also take effect January 1, 2024. SB 700 further amends FEHA to prohibit employers from requesting information from job applicants relating to their prior use of cannabis. However, SB 700 does not prevent employers from complying with state or federal laws requiring an applicant to be tested for controlled substances (such as those in DOT safety sensitive positions mentioned above). An employer may inquire about an applicant’s cannabis use exposed through a criminal background check, if they are permitted to do so under California’s Fair Chance Act (Gov. Code, § 12952), or other state or federal law.

As agencies prepare for AB 2188 and SB 700 to take effect, we recommend the following:

  1. Review the agency’s drug and alcohol testing policies for any necessary changes to comply with AB 2188.
  2. Review the agency’s pre-employment back ground practices to comply with SB 700.
  3. Discuss AB 2188 with your collection site and lab to determine if they are able to accommodate the new testing requirements. If not, the agency should consider removing THC from the testing panel.
  4. Notify employees of the new changes to the policy and how it will affect them.

As January 1, 2024 approaches, PRISM will update this blog post with any new and pertinent information related to AB 2188 and SB 700 as it becomes available. If you have any questions, please contact Kristin Morales.